行政訴訟改革と環境訴訟

• 영문명: Administrative Litigation Reform and Environmental Litigation
• 발행기관: 전남대학교 법학연구소
• 저자명: 山田 洋(Hiroshi Yamada)
• 간행물 정보: 『법학논총』제30권 제1호, 177~187쪽, 전체 11쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.04.30

영문 초록

The latest version of Japan’s Administrative Case Litigation Act was passed in 2004, after 40 years of maintaining almost the whole original version, which has been aimed at entitling citizens to satisfy their needs more efficiently in environmental disputes. This report has been focused on analyzing and evaluating the current and possible influence of the revision on such litigations, and on clarifying and presenting upcoming tasks in this field. The most typical in such environmental disputes are cases in which cancellations of development or installation permission are sought by inhabitants around the planned sites. In such litigations, the most troublesome obstruction lies in the restriction of the third party standing to sue, which was long denied in precedents on the ground that the third parties could not seen as representing particular individual interests besides public interest. In the light of the 2004revision, however, with its newly added article 9 clause 2, some new interpretation has been introduced to sustain the third party standing according to their actual damages. The Supreme Court itself, in the litigation against administrative approval for installing an overhead railway, has shown a new ruling to approve nearby inhabitants’ standings. Alike trend can also be observed in the litigation against future permission to reclaim land from the seashore, which has been made possible by the new provision of prohibitory injunction. Such is one of the great progresses brought by the 2004 revision, in that citizens are able to raise litigation in beforehand not having to wait until cancellation appeal is deemed ripe. In order to prevent further environmental destruction, in addition to the above remedies, it should be provided for citizens to demand Administration to suspend ongoing public constructions. There had not been a path for such appeal traditionally, however, for the Act was not equipped with litigation to impose Administration a duty. Now that the revised Act has both types of mandatory appellate litigation to demand permission towards a plaintiff and to demand order towards a third party, illegal buildings are being litigated by nearby inhabitants to be corrected on administrative order. There also exist other kinds of administrative action than disposition, including plan and guidance. Newer types of litigation, therefore, against such kinds should be sought in the future, so that citizens can be ensured their rights to declaratory judgment etc. when plan or guidance is illegally pursued. Today, we can find dispositions in the 2004 revised Act which show prospect in such expected direction.

목차

一、はじめに

二、取消訴訟の活性化

三、差止め訴訟の法定

四、義務付け訴訟の活用

五、訴訟形式の柔軟化

六、むすびにかえて